February 11, 2013

Sullivan on Domestic Drone Use

The use of unmanned aerial drones - operated by remote pilots and capable of conducting pinpoint strikes on targets around the world - has revolutionized the fight against terrorism. Within the past few years, however, drones have also been used for domestic security and law enforcement purposes, and such local use is likely to expand in the near future. Whether the government’s use of emerging, sophisticated technologies comports with the 4th Amendment’s protection against unreasonable searches and seizures has confounded the courts, and there are growing concerns that traditional 4th Amendment analyses are no longer workable in the context of modern technologies. In U.S. v. Jones (2011), the Supreme Court applied a relatively new doctrine, the “mosaic theory,” in determining whether the government’s use of technology, in this case a G.P.S. tracking system, was consistent with fundamental 4th Amendment protections.

This paper explores whether the “mosaic theory,” laid out by legal scholar Orin Kerr and espoused by the Court in Jones, can be applicable to 4th Amendment challenges to domestic drone use. This paper first explains the extent to which drones are already operational domestically, and briefly discusses proposals to expand their domestic capabilities; second, provides a brief overview of the traditional 4th Amendment analyses in the realm of emerging technologies, with an eye toward determining whether the “property-driven” or “reasonable expectation of privacy” doctrines are no longer applicable to such sophisticated technologies; third, discusses the Jones case as well as the “mosaic theory” in order to provide a solid foundation from which to draw conclusions about its applicability to domestic drone use; and fourth, analyzes a particular type of domestic drone use under the “mosaic theory” rubric, and determines whether it is an appropriate framework to ensure 4th Amendment protections in the context of emerging technologies going forward.

The domestic uses of drones are increasing and have been largely overlooked by the public. At the same time, the courts are struggling with how to check such use against the constitutional right to be free from unreasonable searches and seizures. An appropriate analytical framework is needed to assist the courts in ensuring that the government’s domestic use of drones does not infringe on the people’s well-established civil liberties before drones become an even more ubiquitous part of the domestic American experience or facilitate the creation of a perpetual “nanny state” under the guise of providing national security.